June 2, 2009

A unanimous 7th Circuit panel, consisting of Easterbrook, Bauer, and Posner, adhering to Supreme Court precedent, says that the 2d Amendment is not incorporated in the 14th Amendment and thus does not apply to the states. Easterbrook's opinion (PDF) — emphasizes federalism — the value of decentralized decisionmaking on the subject of gun rights:

One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government.

Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The fourteenth amendment was ratified in 1868, making that rather than 1793 the important year for determining what rules must be applied to the states.) Suppose a state were to decide that people cornered in their homes must surrender rather than fight back—in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens....

Our hypothetical is not as farfetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. Wayne R. LaFave, 2 Substantive Criminal Law §10.4 (2d ed. 2003). An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety—whether guns deter or facilitate crime is an empirical question, compare John R. Lott, Jr., More Guns, Less Crime (2d ed. 2000), with Paul H. Rubin & Hashem Dzehbakhsh, The effect of concealed handgun laws on crime, 23 International Rev. L. & Econ. 199 (2003), and Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001)—but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people’s hands since 1868. The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate....

Chicago and Oak Park are poorly placed to make these arguments. After all, Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”); Crist v. Bretz, 437 U.S. 28, 40–53 (1978) (Powell, J., dissenting) (arguing that only “fundamental” liberties Nos. 08-4241, 08-4243 & 08-4244 9 should be incorporated, and that even for incorporated amendments the state and federal rules may differ); Robert Nozick, Anarchy, State, and Utopia (1974). Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

The panel adheres to Supreme Court precedent, but it also lays out the federalism argument in clear bold terms for future consumption by the Supreme Court.

Do you think it is good for the rules about whether one must retreat before using deadly force or the choice of self-defense weapons and so forth to be subject to variation from state to state? What do you think the famous Brandeis quote — "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country" — in this context?

Sotomayor was labeled “anti-gun” by Gun Owners of America for refusing to extend to the states the U.S. Supreme Court’s 2008 decision overturning a Washington, D.C., handgun ban. The group said a January ruling by a three-judge panel that included Sotomayor displayed “pure judicial arrogance” for declining to throw out a New York state weapons law.

But Easterbrook and Posner — "two top conservatives on the federal bench" — are on the same side.

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled this year that states are bound by the Second Amendment’s protection for an individual’s right to bear arms -- in contrast to the three-judge panel in New York that included Sotomayor....

Mark Tushnet, a law professor at Harvard University in Cambridge, Massachusetts, suggested it was the 9th Circuit approach that is “activist.”

“Judge Sotomayor’s position, and the apparent positions of Judges Posner and Easterbrook, is far more in the mainstream,” Tushnet said....

In a brief, unsigned opinion, [Sotomayor's 2d Circuit] panel said it lacked authority to overturn the ban because that is a matter for the Supreme Court. The high court has “the prerogative of overruling its own decisions,” the opinion said.

And that's exactly what the 7th Circuit said.

Ah, the gods of Supreme Court confirmation are smiling on Sonia Sotomayor. Now, I will place my bet that the white firefighters will lose Ricci v. DeStefano.

If I am traveling (say) from Madison to Cincinnati, must I engage in different conduct to protect myself in Wisconsin, Illinois, Indiana and Ohio? Am I presumed to know the law of just my home state, or of all states I enter? If I have a gun in my car, must I load it or unload it, put it in or out of the glovebox or trunk, conceal it or flaunt it, depending on what state I am in? And how do I know these things?

So you see, the government should take away the guns. It removes all of the confusion.

"Do you think it is good for the rules about whether one must retreat before using deadly force or the choice of self-defense weapons and so forth to be subject to variation from state to state?"Speaking as a professional self defense instructor, differences between state laws concerning concealed carry are already a nightmare.

For example, both Ohio and Indiana recognize CCW licenses issued by the other state. Someone from Indianapolis can keep their gun if visiting Cleveland, and vice versa.

But the laws governing where concealed carry is banned vary. It is perfectly legal for the Indianapolis resident to visit a local bar or restaurant that serves alcohol, as long as they don't imbibe themselves. Their friend from Cleveland can do the same, as long as they are in Indiana and not Ohio.

But it is a felony for someone in Ohio to enter an establishment where people are meant to consume their drinks on the premises. A person from out of state could innocently carry their gun in to a Red Lobster in Dayton, be found guilty of a felony, and be forever barred from even picking up a single round of ammunition. Their right to self defense gone for good.

We don't need a greater level of complexity. When is enough considered enough?

I'm normally all for federalist arguments. Although I live in Illinois and hold concealed carry permits from two other states, I am not in favor of a federal concealed carry law on federalist grounds.

I am troubled by this decision on two grounds however. One is that federalist arguments rarely seem to be used to limit the effective reach of government in other areas and, more importantly, I believe the right to self defense is such a fundamental right that I am uncomfortable with any limitations placed on its exercise.

Govts are not really built to improve stuff because they are bureaucracies first and foremost. If they were better built, govts would be experimenting with universal school choice, putting pushup and pullup bars on every corner and forcing lard asses to use them, allowing voting on the internet, jailing folks who can't drive safely while talking on a cell phone, simplifying our tax returns and simplifying our qualified retirement plans, etc.

So the idea that a state will be an incubator for improvement is a nice one but let's not hold our breath on that.

Uh, interesting...doesn't this basically invalidate the 14th Amendment? That amendment doesn't say anything about "incorporated" or "non-incorporated" parts of the Bill Of Rights.

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Hee. Some classic Big Brother-style reasoning by Easterbrook in his opinion. I like the bit about how Heller "protects only the interests of law-abiding citizens". So Heller says that it's illegal to pass laws restricting gun ownership--unless and until you actually DO pass laws restricting gun ownership. Reasoning reminiscent of another Heller, i.e. "Catch-22".

The 7th Circuit's point about self-defense is interesting, but not beyond debate. After all, one can use a gun for non-lethal self-defense--e.g., shooting an intruder in the leg. If the homeowner is a petite woman and the intruder is a large man, one can easily imagine a scenario in which having a gun would be handy to disable an intruder in a non-lethal way.

I don't have strong views on incorporation of the Second Amendment and think that the Supreme Court should go where a reasonable interpretation of incorporation law leads it. But I do think that the above may be a flaw in the 7th Circuit's reasoning.

Completely wrongheaded. the framers of the 14th amendment, when talking about the right to vote, said it was almost as important to the freed slaves as the right to bear arms. But according to the 7th circuit, only the right to vote applies to the states. what pure crap.

Here's the simple guide to what rights were incorporated. if its in the bill of rights, and the south tried to take the right away from black people, its probably incorporated. sheesh.

The headline quote is upside down. The right to self-defense is one of those unalienable rights not-quite-mentioned in the Declaration, "among these, …" Since these rights come from the Creator (as stated), they predate Federalism, thus are much older and more deeply rooted, rooted in Nature, more so than in the artificial structures of government.

The language of the Second Amendment is deliberately unequivocal: "shall not be infringed." By anybody. The Second does not mention Congress or any other governmental bodies by name, thus it should be taken to apply to all. No need to argue about incorporation, it's a blunt statement.

As for federalism as laboratory, sure, if we can do this with some things, let's try it with others. Drugs? Drinking ages? Minimum wages? Abortion? Abolish Federal standards in general, on things not specifically mentioned in the Constitution as not to be infringed.

The federalism issue seems sort of awkwardly shoehorned in here -- I had to go back and check the text, but it does, indeed, read as I thought:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

That stands in pretty marked contrast to, say, the First Amendment, where the text does clearly flag a federalism issue which has since been disregarded by the courts:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Indeed, incorporation doctrine makes perfect sense in the case I understand it originally to have arisen, i.e. the First Amendment, where there's no way to make the text as written apply against the States -- hence the back-door through the 14th amendment. It makes less sense for most of the other amendments, which have no such textual limitation, and which a reasonable reader might simply understand to be rights enjoyed against all governments governed by the Constitution of the United States. Of course, a reasonable reader would be wrong, but this is not a point in favour of American Constitutional jurisprudence.

Is there any standard procedure for treating purpose clauses? Because it seems to me the purpose clause, where existing, has exactly as much weight as the court needs to give it to arrive at the result they want.

As for fundamental rights, it's in the Bill of Rights. Who are they to decide some parts of the Bill of Rights are more fundamental than others?

Easterbrook, Bauer and Posner have teed up a "does the Second Amendment apply to the States" for S. Ct. review. The Sotomayor nomination is now critical to how this case will ultimately be decided. Conservative Republicans and Pro-Gun groups (that have a lot of say in states with Democratic Senators) are probably gearing up for an even bigger fight.

Hugo Black says 'finally' from the grave. He argued for incorporation of the first 8 Amendments in Adamson (dissent) and Duncan (concurrence).

Prof. Althouse, do you see any way that cert. can be denied in this case?

The language of the Second Amendment is deliberately unequivocal: "shall not be infringed." By anybody. The Second does not mention Congress or any other governmental bodies by name, thus it should be taken to apply to all. No need to argue about incorporation, it's a blunt statement.

Yes, that's what you'd think, but you have to remember, the Supreme Court is comprised of lawyers. Even before Roosevelt II, the Supreme Court had declined to apply similarly unequivocal guarantees against the States. Take the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

That looks, if you are a reasonable reader with respectable reading comprehension, like a guarantee that in the US, you can't be indicted on a capital charge without a grand jury, no? Doesn't say "held to answer by a Federal court." But the reasonable reader would be quite wrong. In 1884, the Supreme Court held that the Fifth Amendment does not guarantee grand juries in State capital cases. The issue doesn't even trip the court up for a moment -- if you read their opinion, they progress smoothly from noting the existence of the Fifth Amendment to characterising it as follows:

That article makes specific and express provision for perpetuating the institution of the grand jury, so far as relates to prosecutions for the more aggravated crimes under the laws of the United States.

I believe the right to self-defense by whatever means necessary is a more deeply rooted tradition than law.-"the right of the PEOPLE to keep and bear arms shall not be INFRINGED" -It takes lots of education to convolute that simple statement.

I know it's fun and all, but mental masturbation has consequences in our society.

It should come as no surprise that the legal community will distort the constitution in any way necessary to effectively repeal the 2nd amendment. The government, all three branches, fear neither elections nor media nor public opinion. They fear only an armed citizenry. This decision isn't about self defense from criminals but self defense from tyranny.

It seems as if the God of Supreme Court confirmation is indeed smiling, and laughing at anyone in His way. I do wonder why the all wise Judge of the living and the dead does such things in His own special timing.

We live at the far end of a dead-end rural road. Less than a year ago we heard serious semi-automatic shooting near the closes neighbor ( one mile away ) at 03h30 and called the cops. Next the perps shot up an abandoned house before heading down our little road.

Fortunately -- for them -- the cops got to 'em before I did, about half way down our road. In the event, the wackos were firing a couple of 45s, a 12 ga, and two AR-15s.

They were 300 feet from one splash off the gravel road for warning ... after which I would have fired for effect. The perps would not have survived that encounter.

I would have defended that action in front of any real jury in the nation. I'm profoundly thankful I did not have to do.

Hard to show you were discriminated against when everyone was treated the same.Really? So if the best qualified firefighters had been black and the city decided to cancel promotions to avoid promoting black guys, that'd be A-OK with you? Don't be silly. It's possible to make a coherent defense of the city - your's is not it.

In this connexion, it's also worth noting that when Thomas Hobbes made his argument about inalienable rights, the right he started with was not freedom of speech or freedom of religion or economic liberty or sexual liberty -- it was the right to self defense:

And therefore there be some Rights, which no man can be understood by any words, or other signes, to have abandoned, or transferred. As first a man cannot lay down the right of resisting them, that assault him by force, to take away his life; because he cannot be understood to ayme thereby, at any Good to himselfe. The same may be sayd of Wounds, and Chayns, and Imprisonment; both because there is no benefit consequent to such patience; as there is to the patience of suffering another to be wounded, or imprisoned: as also because a man cannot tell, when he seeth men proceed against him by violence, whether they intend his death or not.

I already slapped you down on this point once. If you refuse to take an action because of the race of the people who would benefit, that is racial discrimination.

That doesn't mean its automatically illegal, but it means it is very hard to defend. If you had taken even one semester of law school, or had two brain cells to rub together, you would know that.

Really, when say that the city didn't discriminate, you sound like one of those dipshits who didn't think bans on interracial marriage was discriminatory. Like those idiots, you can only pretend that everyone was treated the same by ignoring reality.

Take interracial marriage. Imagine this scenario. A black woman comes into the justice of the peace and says, “sir, I want to marry James Walker. He will be in, in a minute. Will you please perform the ceremony?” The JP replies, “let’s wait until your husband comes in.” So they wait and the door opens... and we imagine one of two things happening.

In the first scenario, James Walker comes in, and he is black. The JP performs the ceremony.

In the second, James Walker turns out to be white. The JP then refuses to perform the ceremony.

In other words, whether the ceremony is performed or not is determined by the color of the man walking through the door. Black letter law says that is racial discrimination and utterly illegal under Loving v. Virginia. But I suppose you would argue that since the JP did nothing in the second scenario there was not discrimination. *rolls eyes* Doing nothing when but for the race of the person you would have done SOMETHING is discrimination.

Now here, the fact is that if they had more black people pass the test, they would have certified it. In other words, they treated those firefighters different because of their race.

Think of it this way. Imagine they were calling out the names of the five people who got the highest scores. They call out four names and all four are white. Now they are getting ready to call the last one: James Walker. And they look out to see who stands up. Now imagine two outcomes:

The first outcome is that that a black guy stood up and identified himself as James Walker. They smile and say to the five: congratulations, you are promoted. Everyone is happy.

The second outcome is that a white guy stood up and identified himself as James Walker. The city panics, and says, "sorry, the test is cancelled. No one is getting a promotion."

Just as treating people different because of the skin color of James Walker in the context of marriage is discrimination, so is treating those firefighters different due to the skin color of James Walker is also discrimination in that firefighter scenario, and I challenge you to explain what on earth is different in my scenario on principle from what really did happen in new haven. They clearly said, “crap, too many white people!” and scrapped the test. But for the color of the people who passed it, they would have certified it.

And you can try to justify it, but under the fourteenth amendment, that is not easy. It has to be narrowly tailored to serve a compelling interest, and nothing I have seen in that record suggest that they were behaving in a narrow way at all. It was pure racial politics and the fear of suit. But the mere fear of being sued doesn’t give them the right to discriminate willy-nilly.

And bluntly, you do violence to the people you want to protect when you claim it is not even discrimination. You would pretend that no discrimination occurred at all, so that next time when a city refuses to certify the results because too many black people passed it, those African Americans would have no cause of action. That’s called cutting your nose to spite your face. If you actually care about racial minorities, you wouldn’t support this precedent.

So, you know what? Stop commenting on law. Clearly you are not even minimally qualified.

Uh, Federalism dates to 1787. I'm not sure it's a "tradition." It was rather clearly defined in the Constitution, which was ratified by the original States, after debate and modification. It's fair to say that it didn't exist prior to that time.

The 2nd Amendment's reaffirmation of the deeply rooted tradition of the right to keep and bear arms was a condition required for the ratification of the Constitution, which was the beginning of Federalism as a tradition.

The right to keep and bear "arms" doesn't refer to "any particular kind of weapon."

This certainly demonstrates that "judicial conservatives" are as good using convoluted language to make their decisions fit a desired result, as any "judicial liberal" has ever been.

I believe basically every penumbra in the whole sorry parade from Griswold v. Connecticut (contraceptives vendor is protected by right of marital privacy) to Roe v. Wade (abortion is a fundamental right) has been extended under the auspices of the Fourteenth Amendment. It's all state action (Wade represented the State of Texas).

First, conservatives don't favor states rights on every topic. so you killed an innocent straw man for nothing.

Second, while there is some linguistic support for the notion that much of the bill of rights applied to the states, baron v. Baltimore said more or less that it didn't, in the early part of the 19th century. So we have close to 200 years of interpretation to overturn to say any part of the bill of rights applies directly to the states.

The real debate in the courts, then, is about a doctrine called incorporation. the notion is that by passing the 14th A, the founders of that era intended to apply the bill of rights to the states. that is where the fight really is.

Still, it is pretty topsy turvy to say that the right to an abortion is incorporated against the states, but the right to bear arms is not. And anyone who studied the attitudes of the 1868 founders on the subject saw them as big supporters of the right to bear arms. i know. i immersed myself in their writings and their speeches. they believed in a way we don't today in the value of self-reliance and self-defense as the best way to make the former slaves free and independant. The notion that they didn't intend for those former slaves to have the right to bear arms is unfathomable.

Uh, Federalism dates to 1787. I'm not sure it's a "tradition." It was rather clearly defined in the Constitution, which was ratified by the original States, after debate and modification. It's fair to say that it didn't exist prior to that time.

The principle of local control, and of a diversity of practices is something that one could argue is far, far older. And of course, the states were independent prior to joining into the United States. Their existence as separate sovereign states prior to incorporation in the Constitution suggests -- to me at least -- that the idea that they retain some of their own autonomy is not wholly a creation of the Constitution.

For an analogy, consider the Hapsburg empire, where component states such as the Kingdoms of Bohemia and Hungary were governed through their own administrative and legal apparatus, rather than directly by Austrian institutions. Indeed, reaching back further into history, a similar principle can be divined from the institutions of the Holy Roman Empire, in which local principles enjoyed substantial control, but were theoretically subject to the rule of the Emperor. All these are clear precursors to the Federalist idea, though they arose naturally and organically, though custom, rather than because a bunch of men sat down in a room somewhere and decided it might be a good idea.

Professor, you seem to wish to stress -- both here and at Instapundit -- the assertion that the 7th Circuit judges "adhere[d] to Supreme Court precedent." By that, do you simply mean that they didn't defy Supreme Court precedent? I can see where their reasoning could be characterized as consistent with Supreme Court precedent, but I don't think it was compelled by Supreme Court precedent, so in that sense they could have reached the opposite conclusion while still "adhering" to Supreme Court precedent, couldn't they?

Actually, in my view, this panel went quite a bit further than the Sotomayor panel. The Sotomayor panel basically just punted by saying they had to follow the old pre-Reconstruction precedents until the Supremes held otherwise. The new opinion goes further to offer reasons why the Second Amendment ought not to be incorporated in the Fourteenth.

How is it that the principle of Federalism prevents the federal government from protecting one of the fundamental rights of free people as enshrined in the Bill of Rights, yet the same principle does not prevent the federal government from telling an auto manufacturer in Ohio what kind of cars it can build?

There is no latitude. Here is Justice Scalia again (554 U.S. 19 (2008)):

"c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed . . . .”(Emphasis original)

and then (554 U.S. 21 (2008)):

"In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” (cite omitted). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (Emphasis added)

Their existence as separate sovereign states prior to incorporation in the Constitution suggests -- to me at least -- that the idea that they retain some of their own autonomy is not wholly a creation of the Constitution.Federalism is not the same as some state autonomy. It's a specific governing principle, chosen after much debate and some compromise, in the late 1780s.

States had more autonomy before that time, and they did not exist under a Federal system until then. That they had to decide to join in said Federal system in 1787 and '88 demonstrates this quite clearly.

"Federalism" is a word that means something other than whatever someone wants it to mean.

That's my point. They're using these words ex post facto to fit their desired outcome (which they had hinted at before reviewing the case), not to help determine what the outcome ought to be.

"one can easily imagine a scenario in which having a gun would be handy to disable an intruder in a non-lethal way."

One would be completely unfamiliar with firearms, then: there is basically no safe, reliable way to would without killing. People even die from being shot with .25 ACP, that most trivial of commonly-available cartridges.

Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.That is so completely fucking wrong that I cannot believe whoever wrote that had even a passing knowledge of American history.

But it seems like we have a "living" constitution when it comes to abortion--privacy gives a woman the right to kill a baby until the moment of birth regardless of states' rights--but then claim it's a dead document when it comes to guns. Why?

"Do you think it is good for the rules about whether one must retreat before using deadly force or the choice of self-defense weapons and so forth to be subject to variation from state to state?"

If you're asking for a layman's opinion, then no, I don't think so. That stance misidentifies what distinctions are important to consider in self-defense scenarios. For example, legally obliging one to retreat may not be possible when one is responsible for someone less ambulatory i.e. a small child, or disabled family member. So why would the obligation vary from state to state when there presumably is no state-level difference in the distributions of such scenarios? The truly important characteristics dictating whether a retreat is feasable or not varies at a level other than the boundaries of a state; it varies upon the situation. Therefore, varying such a rule at states levels is illogical.

Ideally, a sense of what self defense should properly entail should be constructed first, and only then should the law be written. But that's nothing more than my 2 cents, and I am most emphatically not a lawyer, not with my field of education and professional experience. Take from this argument what you will.

"What do you think the famous Brandeis quote — "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country" — in this context?"

I like the ideal. The problem is that the practical application of this tends to fail. Too many people point to the passing of a regulation as the accomplishment in and of itself, and afterwards they look to use it as a bludgeon to justify similar laws in other areas regardless of whether the "social experiment" succeeded or failed in the first location. So I'm cynical about how the concept is actually applied in the real world, but I'd still prefer a multitude of legal viewpoints to a potentially tyrannical blanket singularity.

They wrote, "... the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule."

So when a local school zone decides to offer a moment of silence or even a prayer before the high school's football game begins, that's okay now? Surely it would be a "local difference" to be "cherished" as an "as elements of liberty."

"one can easily imagine a scenario in which having a gun would be handy to disable an intruder in a non-lethal way."

One would be completely unfamiliar with firearms, then: there is basically no safe, reliable way to would without killing. People even die from being shot with .25 ACP, that most trivial of commonly-available cartridges."

If someone came into my house with a knife or baseball bat I could disarm them by pointing a gun at them and telling them to drop their weapons. I would only have to shoot if they pressed their attack. Most of the time guns only have to be displayed to get intruders to either run away or surrender.

But you are correct: If you shoot, you should shoot to kill. There is no safe way to shoot a person and you shouldn't be shooting unless it is a life threatening situation.

Petitioners suggest (Br. 21-27) that this case involves racial classifications such as occurred in cases like Parents Involved in Community Schools v. Seattle School District No. 1, 127 S. Ct. 2738 (2007), Adarand, and Croson. These cases, however, all involved the allocation of opportunities that expressly depended onthe race of the individual. Parents Involved, 127 S. Ct. at 2746; Adarand, 515 U.S. at 213; Croson, 488 U.S. at 477-478.

The government action at issue here, which did not treat individuals differently according to race, is of a fundamentally different character. The promotions petitioners seek have not been awarded on the basis of aracial quota or pursuant to an affirmative-action plan, nor will they be. Rather, all that has happened is that the test results went uncertified for all candidates, those who passed and those who did not, where bothcategories included white and black individuals. Pet. App. 429a-436a; JA227. This case thus lacks the hallmark of express racial classifications—“state-mandated racial label[s]” that determine the “allocation of benefits and burdens.” Parents Involved, 127 S. Ct. at 2797 (Kennedy, J., concurring in part and concurring in the judgment). Indeed, petitioners have repeatedly noted that, under these tests, African-Americans as well as Hispanics would have been available to be promoted. See, e.g., Br. 61-62 n.27 (asserting that “the city denied 5 highly qualified minorities well-deserved promotions— to their dismay, see Pet. App. 420a-422a” as a result of its decision not to use the tests); Br. 26 & n.11. The non-certification “neither says nor implies that persons are to be treated differently on account of their race.” Crawford v. Board of Educ., 458 U.S. 527, 537 (1982).That the higher-scoring group was disproportionately white does not render non-certification a racial classification; it simply means that the race-neutral conduct had differential effects, and such effects can trigger strict scrutiny only if accompanied by discriminatory intent. Washington v. Davis, 426 U.S. 229, 242 (1976); see infra Part II.A.2. Any such argument, moreover, presumes a critical factor that is absent here—that the tests properly assessed candidates for promotion. If the tests did not do so—and, as discussed above, see supra Part I.C., there is at least a strong basis to conclude they did not—then any argument about disproportionate effects fails because the white candidates with superior scores should not have obtained those scores in the first place. Cf. Croson, 488 U.S. at 526 (Scalia, J., concurring in the judgment) (a “State may … giv[e] to a previously rejected black applicant the job that, by reason of discrimination, had been awarded to a white applicant, even if this means terminating the latter’s employment. In such a context, the white job-holder is not being selected for disadvantageous treatment because of his race, but because he was wrongfully awarded a job to which another is entitled.”); see also Billish v. City of Chicago, 989 F.2d 890, 895 (7th Cir. 1993) (en banc) (Posner, J.) (Plaintiffs “have no vested rights in their position on an eligibility list compiled on the basis of an examination that may have been biased in favor of whites”).

Niall Ferguson: “There will be blood, in the sense that a crisis of this magnitude is bound to increase political as well as economic [conflict]. It is bound to destabilize some countries. It will cause civil wars to break out, that have been dormant. It will topple governments that were moderate and bring in governments that are extreme. These things are pretty predictable. The question is whether the general destabilization, the return of, if you like, political risk, ultimately leads to something really big in the realm of geopolitics. That seems a less certain outcome.”"

"That the higher-scoring group was disproportionately white does not render non-certification a racial classification; it simply means that the race-neutral conduct had differential effects, and such effects can trigger strict scrutiny only if accompanied by discriminatory intent."

Could this conservative court be motivated to promote federalism in an age where conservatives are worried about statism? By doing it in a way that allows States to limit gun rights is a way to place the progressive left in a bind.

Oh, and look at the argument that 'Federalism is an older and more deeply rooted tradition than X.' Now replace Federalism with 'Marriage, defined solely as being between a man and a woman.'

I didn't call you a retard. And you're right, that is a coherent arguement. It's dishonest, but coherent. I stand corrected.

The promotions petitioners seek have not been awarded on the basis of aracial quota or pursuant to an affirmative-action plan, nor will they be.Nope, they're just gonna keep rolling the dice until they get the result they want. That the decision to "non-certify" the results was entirely based on the racial outcome is itself discrimination. If folks think that's fine, they can say so, but to deny it is dishonet.

Speaking of which, I bought some more ammo today, there was no pistol ammo at all - no .38, no .45 and no 9mm. I got a few boxes of 12 guage buck shot and moved along. Thank goodness liberals are afraid of guns.

It should come as no surprise that the legal community will distort the constitution in any way necessary to effectively repeal the 2nd amendment. The government, all three branches, fear neither elections nor media nor public opinion. They fear only an armed citizenry. This decision isn't about self defense from criminals but self defense from tyranny.This comment is representative of the sort of legal "analysis" currently being carried out in this thread. Read the opinion, and you will see that the 7th Circuit felt constrained by prior Supreme Court precedent on the issue, even though that precedent predates the Supreme Court's modern stance on incorporation. It is not possible for a ruling to be more modest than this, and it is the exact opposite of what you refer to as "distortion" (or "judicial activism" I suppose, when "liberal" judges do it.) Read the opinion for yourself: does it not appear that the 7th is practically begging the Supreme Court to revisit the 2nd amendment? I would be extremely surprised if they don't. However you feel about this particular ruling, it is most likely a temporary state of affairs.

That being said, the truly interesting question it hand is whether the Supreme Court might use incorporation to apply the 2nd amendment against the states, or whether they might go so far as to revisit the Privileges and Immunities clause, and reshape the entire framework by which the first 8 amendments are applied against the states.

First, The statement quoted in the title is factually incorrect. The right to bear arms articulated in the 1689 English Bill of Rights, which predates American Federalism by nearly a century, was (or created) the common law right informing the creation of the Second Amendment.

Second, this Appellate decision is unimportant because it nothing more than a test case. The NRA sued expecting to lose at this level. Emphasizing Easterbrook and Posner's agreement is a red herring, i.e. for the same reason most Conservative legal scholars do or should agree with Tushnet. Heller was tried first in order to establish precedent (the Federal jurisdiction was an easy target). This case exists ONLY so that the Supreme Court will incorporate the Second Amendment against the states as it has for much of the Bill of Rights.

Sotomayer will have no effect on the outcome, since it will turn on five conservative justices ideas about incorporation.

Twist and turn all you want, but here is the reality: if more of those firefighters had been black, they would have gotten the promotion.

How can you deny, then, that this was differing treatment according to race?

That is discrimination under the 14th A, and is subject to strict scrutiny. And for you to pretend there is not discrimination is contrary to law. That Soto and company did it, is equally so.

Let's take your logic to the ultimate conclusion. Suppose another city created a test and discovered that 80% of the people up for promotion under it were black. And then the city fathers said, "niggers are all stupid, and the fact that so many did so well on that test proves the test stinks. So we will throw out the results."

According to your logic, that is not discrimination at all. It triggers absolutely no scrutiny under the constitution.

Most sane people say that is bullshit. That you would legalize actions based on outright racism should at least give you pause.

The correct answer is to analyze both the new haven case and my hypothetical under the strict scrutiny standard.

Btw, the original Heller majority was Scalia, Kennedy, Thomas, Roberts and Alito. The dissenters were Souter, Stevens, Ginsberg, and Breyer. Even if Sotomayor votes with the liberals, she is replacing Souter, so no change.

The real question then is whether Kennedy will be swayed. Kennedy's talk about the need to protect the right to bear arms to hunt bears, etc. would be just about as valid when talking about the founding of the 14th, but in truth it just is a different ball game.

I will say honestly i have no respect for Kennedy. Even when i agree with him, i don't respect him. His opinion in the Kennedy v. LA case was simply monsterous and i think Alito brilliantly dissected his faulty logic. Ever since I have known that Kennedy draws his conclusions first, and then finds his argument second.

If the Bill of Rights are now states rights, then I am going to introduce a bill in the state legislature to make the Southern Baptists the official church of the Commonwealth of Kentucky. (And I'm not even Baptist.) Congress can't establish a national church, but the Constitution is silent on states establishing their own official churches. They used to exist. I'm resurrecting this fine tradition. If I sponsor this bill, I'm pretty sure I'll get a free fried chicken dinner every Sunday for the rest of my life.

"Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon."

Oh really?

Madison based his 1789 Second Amendment related language on the Virginia Convention's proposed Bill of Rights of 1788. It consisted of an exact quote of Virginia's 1776 Declaration of Rights "well regulated militia" of the people provision along with a quote of Pennyslvania's 1776 "that the people have a right to bear arms" Declaration of Rights provision with the words "keep and" added to it. Seems to me that 1776 came well before 1787 making the older concept, you know, older.

Since all eight existing state bills of rights at the time contained Second Amendment predecessors, which were in fact where the Second Amendment's language came from, that certainly seems to indicate something deeply rooted in tradition. It represents what the people expected, what they always did as a matter of course, and what they fought for during the American Revolution. That is more deeply rooted in tradition than a brand new concept just starting out fresh in the 1787 Constitution as explained in The Federalist.

The people of America just would not accept the brand new Constitution based on the federalism concept without the older and more deeply rooted traditional rights, including the right to arms, being added and protected in a U.S. Bill of Rights.

The statement quoted above from the end of the decision is bizarre from a historical point of view.

Funny how the url for the decision keeps changing. I hope some legal scholar is caching all of these — is it being revised? If so, that's about a dozen revisions today.

I'm inclined to agree with El Presidente (2:37 pm, 3:29 pm), and part of Xanthippas (6:33 pm), that this is a set-up to send the 2nd back to the SCOTUS, in the hope that, with a new justice, or who knows, maybe a couple of new justices by the time it gets there, Heller will be reversed, and the avenue opened to much stricter gun legislation.

This shows how screwed up our jurisprudence has become. The 14th Amendment was never intended to "incorporate" any of the Bill of Rights. Yet the liberals created the doctrine which lacked any textual basis and used it to restrict the states from doing anything that offended their sensibilities. Thanks, Mr. Justice Warren.

The greatest irony is Brennan's Roe v. Wade. Conservatives have said for years that whether abortion should be legal is a question reserved to the police power of each state. However, despite the absence of any textual basis at all, Brennan found the right to abortion in the penumbras of the shadows of the Constitution. He then determined this was a fundamental right that the states could not unduly burden.

So let me see if I have this straight; the right to bear arms, guaranteed by the plain language of the text of the second amendment, isn't a fundamental right, but the right to abortion, which the drafters conveniently forgot to include in the text, but hinted at in the penumbras of constitutional shadows, is?

The 7th and 2nd Circuit's reasoning - that they are bound by precedent - is thinner than vermicelli. The incorporation doctrine hadn't been widely applied at the time that "precedent" they refer to was written. So of course that case, over 100 years old, held that the 2nd amendment wasn't incorporated.

Over 100 years and numerous instances of "incorporation" later, the viability of that case is seriously suspect, and that's putting it generously. Claiming that it is binding precedent is a vague excuse at best. If the right were one that those courts favored, they'd have been quick to dismiss that case and point out that 100 years of subsequent jurisprudence put the validity of its holding in serious jeopardy.

What if the Court in Brown v. Board of Education wrote that that it was unfortunately bound by Plessy v. Ferguson?

Aaron said... Completely wrongheaded. the framers of the 14th amendment, when talking about the right to vote, said it was almost as important to the freed slaves as the right to bear arms. But according to the 7th circuit, only the right to vote applies to the states. what pure crap..

Agree.

Add in that the almighty judges may not like it at all if States are allowed to decide - not Feds - on what are "acceptable" militia weapons. For a militia to match up against any modern army threat, they need machine guns, heavy and light. High explosives and direct and indirect launchers (mortars, AP direct fire squad weapons (RPGs, grenade lauchers, Claymore mines, C-4 satckel charges for obstacle/building/bridge demoliticlearance on, TOW type missiles). As well as MANPADs to take out warplanes, cargo jets, helos.

Montana is already wanting to legalize machine guns under "States Rights". Add in that .22 rimfire rifles "have no militia use" and could be banned under 7th Court reasoning - but that military uses .9mm pistols and "illegal-length" shotguns in house to house combat...

Let the almighty judges who generally have no idea of what a modern effective militia must have in possession to be effective - chew on all that.

Truly don't the courts ever try something as simple as reading comprehension? Federalism predates the incorporation concept? Really. Have these fine jurist ever bother to read the Northwest ordinance, passed and ratified by Congress twice, first under the Articles of Incorporation and again under the present constitution. Both President Washington and Congress considered it that important. It allows for the right to bear arms for self defense and it is a requirement that every State admitted in to the Union must have a constitution that is not offensive to the US Constitution. Congress also reaffirmed in 1878 that the Basic Organic Law of The United States includes the Articles of Confederation (never repealed) the Common Law up to the time of the adoption of the Constitution and the Declaration of Independence.

If the 7th is too stupid or incompetent to get that most basic point they should be impeach and removed en mass from office. If you have no right to be born and no right to defend your life,and no right to the fruit of your labor, you have real no rights at all.

I find it rather hilarious the number of people willing to selectively quote the "absolute" language in the second half of the 2nd Amendment, while completely ignoring the "militia" clause.

Also funny how most everyone here is acting like all guns do is "defend" people. Why did you need the defense? Was it because, *gasp* someone with a GUN was going to KILL you? Huh. Seems like I'd be safer if that dude that was going to kill me with the gun just didn't have a gun.

And the idea that the concept (if not the name) of federalism dates only to 1776 is completely ridiculous. Are you guys serious?And just because the right to self defense is old doesn't mean that right to use GUNS for self defense is that old. Give up the selective reading of history, please.

Also, the link provided above to the Bloomberg news story provides a handy explanation for why Sotomayor and now the 7th Circuit are ADHERING to Supreme Court precedent:

"In its ruling last year on the Washington handgun ban, the Supreme Court said the Second Amendment protects an individual’s right to bear arms against regulation by the District of Columbia and the federal government. Previously, the high court had recognized only a collective right to bear arms applied by state militias. ...The Supreme Court said in a footnote to its 5-4 ruling in the Washington case that it didn’t decide whether the Second Amendment binds the states as well as the federal government and the District of Columbia."This was an explicit issue for the 7th circuit; they can't "anticipate" SCOTUS overruling its own precedents.

If you can't figure out why that means that SCOTUS precedent was adhered to today, you shouldn't be posting on a blog like this.

Give me a break. Of course the lower courts should honor settled supreme court precedent, but where the supreme court itself calls its precedents into question, then the lower courts are allowed to take a fresh look for themselves. That is what has happened with Heller. Prior to Heller, there was a settled view that the 2nd A was a dead letter anyway. Now it is clear that the 2nd A is not dead letter, then it is calls that precedent into question, too.

Its not crazy to uphold what the supreme court said just because they said it, but it is not wrong to say, “the supreme court seems to be open to the idea that it is incorporated, therefore lets take a fresh look.”

And i think bluntly any honest look at the evidence says that this shouldn't be the law of the land.

The wording of the second amendment makes the most plausible interpretation one where the federal government has no role restricting an individual's right to keep or bear arms, or the manner in which they may deploy them, but where locales certainly do ("well regulated militia", "free state" - where "state" doesn't mean the national government, but the individual states).

Are there not local, community standards for speech as well (i.e. obscenity laws)? How can one allow a right as sacred as speech to be regulated by local standards but not firearm ownership?

The failure to differentiate between a right to own especially dangerous weapons from the right to own firearms generally is like failing to differentiate between a right to own a megaphone and a right to talk on the telephone.

Regarding abortion, my understanding was that Kansas is one of only a handful of states to allow it past 24 weeks. Roe v. Wade didn't prevent other states from restricting its scope.

If you can't figure out why that means that SCOTUS precedent was adhered to today, you shouldn't be posting on a blog like this.

If you read what you wrote, you're indicating that the Supreme Court passed on the question of whether the states are similarly bound. The 7th Circuit is clearly not following precedent, because the Supreme Court have explicitly declined to establish a precedent.

Heller only applied to the second amendment as applied to the District of Columbia. D.C. is not a state, so incorporation of the 2nd Amendment by the 14th was not addressed.

I would think that most folks are surprised that Easterbrook and Posner came down on the side that they did. Easterbrook and Posner are two of the smartest guys on the federal bench so it would not be at all surprising for them to recognize the narrow ruling of Heller and write an opinion that cries out for Supreme Court review.

Another question for Professor Althouse, do Easterbrook and Posner want their ruling overturned and does this count as judicial activism? If so is it a more acceptable and elegant form of activism than siding with a preferred party?

If you read what you wrote, you're indicating that the Supreme Court passed on the question of whether the states are similarly bound. The 7th Circuit is clearly not following precedent, because the Supreme Court have explicitly declined to establish a precedent.

Sure the Court did, and surely the 7th Circuit can claim to be following it: Cruikshank i n 1876, Presser in 1886, and Miller v. Texas in 1894. All decided before even one of the Bill of Rights was incorporated against the states. From a day when the Federal Constitution restrained only the Federal Government.

I don't think so. There's at least one other purpose clause in the Constitution, though -- the copyrights clause:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

I don't think Courts have been particularly interested in teasing out what it means "To promote the Progress of Science and useful Arts."

That said, though, characterising "A well regulated Militia, being necessary to the security of a free State" as a "purpose" clause already steals a base. As I read it, it doesn't seem like a purpose clause at all, but simply sets out the factual predicate for the right.

Anyhow, one can disagree with the factual predicate, but it would be like arguing that Congress does not in fact have the power to establish patents and copyrights, because such monopolies do not in fact, "promote the Progress of Science and useful Arts" -- i.e. the Framers got their facts about how the world works wrong. I don't think a jurist would take such an argument seriously, so it's bizarre that so many take the Militia clause as justification for vitiating the right secured by the amendment.

Except you keep ignoring the fact that the test would have been certified, but for the color of the top scorers' skin.

New Haven promised its firefighters that the top scorers would get the promotion. But when they saw the color of the top scorers' skin, they changed their mind, explicitly citing their race as the reason.

Now, you can say, "sure, its discrimination, but its still legal because..." but you cannot deny, as a matter of black letter law, that this is discrimination and therefore subject to the strict scrutiny test.

That is not to say the white firefighters deserved to win necessarily. That is debatable. But it absolutely undebatable under the law that if you do something different than you would have otherwise, that is discrimination at the very least and has to be justified to be legal.

And further the PRECEDENT you would set would make my hypothetical, where they throw out the scores because too many black people passed, legal. However clearly their behavior was based on racial animus, you would say it is not discrimination. in case you missed it, the definition of discrimination doesn't change because of the color of the person being discriminated against. The only thing that can change is some of the justifications, because obviously you can only invoke affirmative action in cases involving discrimination against white guys. But in the cases upholding affirmative action, it wasn't that the Supreme court said it wasn't discrimination; it was that they said it was LEGAL discrimination. Likewise, i would assume that avoiding a disparate impact can justify discrimination in the right case, but it doesn't negate the fact it is discrimination.

What you are saying is not, and cannot be, the law.

But shock of shocks. A man who demonstrated incredibly ignorant bigotry against the disabled is tearing down a protection against discrimination for others based on race. Gee, color me surprised that you have an incomplete understanding of what equal protection means.

(For background, this jerk said that a dyslexic is not qualified to be a firefighter, because he would see a stop sign, misread it as "post" and run through the intersection and kill people. Anyone who has minimal knowledge on the subject knows how ignorant and bigoted that comment is.)

Btw, thomas Davies has written a classic article on the original meaning of the fourth amendment that demonstrates that the reasonableness clause is actually preambulatory, and not meant to be operative.

As for the copyright clause, in fact in a recent case the court was asked to limit the operative language with the preambulatory language and they declined. if memory serves, that was discussed in the keller decision.

Except you keep ignoring the fact that the test would have been certified, but for the color of the top scorers' skin.

If the test had not had a disparate impact, its flaws would have gone unquestioned, and it would likely have been certified, as previous exams had been. But you seem to think that the Fire Department would have automatically certified an exam on which only blacks excelled, which supposition has no factual basis.

> If the test had not had a disparate impact, its flaws would have gone unquestioned, and it would likely have been certified, as previous exams had been.

In other words, because of the race of the people who scored best, they scrapped the test. That is unquestionably racial discrimination under the 14th A.

The only question is whether it is legal or not.

> But you seem to think that the Fire Department would have automatically certified an exam on which only blacks excelled, which supposition has no factual basis.

That is bluntly a lie. I have said repeatedly that the inquiry doesn’t end with whether or not it is discrimination. There is something called the strict scrutiny test, and it is possible to pass it. And I have explicitly said that under the right circumstances, a proper effort to avoid a disparate impact will pass scrutiny under the constitution. But the key thing to understand, that you can’t get through your thick skull, is that EVEN IF IT IS LEGAL, IT IS STILL DISCRIMINATION.

In other words, even if they were lawfully avoiding a disparate impact, IT IS STILL DISCRIMINATION. Sheesh.

I know all you care about are outcomes: who wins or loses. I dare say I suspect you are much more concerned with whether Sotomayor is reversed than well being of the parties. But I care about process, and making sure that when a person loses or wins in our courts, they win or lose for the right reasons. Ricci lost his case for the wrong reasons. If you want to discriminate against anyone according to race, you have to pass an extremely stringent test—yes, even if it is a white guy facing the discrimination. The district court subjected New Haven to absolutely no test at all. And that is wrong. Black letter wrong.

"Also funny how most everyone here is acting like all guns do is "defend" people. Why did you need the defense? Was it because, *gasp* someone with a GUN was going to KILL you? Huh. Seems like I'd be safer if that dude that was going to kill me with the gun just didn't have a gun." - Robert

Perfect example of utopian wishful thinking. If only we get rid of ALL guns, think of how safe we'd be. And of course to achieve that goal (absolutely zero guns) would require a tremendous police state, much violence, and complete tyranny doesn't seem to bother Robert. Add in the fact that even absent guns, humans have been shown to be quite adaptable to whatever weapons are available: knives, clubs, etc. So to sum, you can't guarantee your safety, thus self-defense with weapons may be required and is therefore a basic human right.

But the key thing to understand, that you can’t get through your thick skull, is that EVEN IF IT IS LEGAL, IT IS STILL DISCRIMINATION.

A lawyer should know that discrimination in the employment context is illegal, under Title VII of the Civil Rights Act of 1964, and that if the conduct is is legal, then it is not discrimination. Or are you using discrimination in a non-legal sense?

From the District Court decision: 1. Burden-Shifting Framework Under that framework, plaintiffs first must establish a prima facie case of discrimination on account of race. See Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). To do so, they must prove: (1) membership in a protected class; (2)qualification for the position; (3) an adverse employment action; and (4) circumstances giving rise to an inference of discrimination on the basis of membership in the protected class. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802(1973), Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.2000). "A plaintiff’s burden of establishing a prima facie case is de minimis." Abdu-Brisson v. Delta Airlines, Inc., 239 F.3d456, 467 (2d Cir. 2001). Defendants do not dispute the first three prongs of the test, but argue that plaintiffs cannot establish an inference of discrimination because all applicants were treated the same, as nobody was promoted off the examination.

Once the prima facie case is established, the defendant must show a non-discriminatory reason for the conduct, which the plaintiffs must then show is a pretext. But if the plaintiff proves his case, the employer's conduct is discrimination and thus illegal.

Normally, statutes that create classes are subject to strict scrutiny. Title VII of he Civil Rights Act of 1964 has been litigated many times, thus presumably has survived strict scrutiny. New Haven's conduct was intended to comply with Title VII and in fact does comply with Title VII. Therefore New Haven's conduct in this case likely can withstand strict scrutiny.

In my mind, whether it is good policy or not is beside the point. The issue is what the constitution says and that is the beginning and end of the question for me.

But I always find it odd that often the same people who claim you can never stop illegal drugs or illegal immigration, claim that you can stop illegal guns from entering the community. I mean seriously, if you can't stop a guy from jumping the fence separating us from Mexico, then wouldn't shipping a gun be as easy as asking that illegal immigrant to carry it?

But the reason for a right to bear arms is not merely to protect us from criminals, but also to protect us from our own government. Kosinski, dissenting from a 9th circuit precedent effectively overturned by heller put it really well:

> But the simple truth -- born of experience -- is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks' homes for weapons, confiscated those found and punished their owners without judicial process. See Robert J. Cottrol & Raymond T. Diamond, The Second Amendment: Toward an Afro-Americanist Reconsideration, 80 Geo. L.J. 309, 338 (1991). In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. Id. at 341- 42. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to "keep and carry arms wherever they went"). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.

> All too many of the other great tragedies of history -- Stalin's atrocities, the killing fields of Cambodia, the Holocaust, to name but a few -- were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece…. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.

> My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed -- where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees*. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

"I find it rather hilarious the number of people willing to selectively quote the "absolute" language in the second half of the 2nd Amendment, while completely ignoring the "militia" clause."

Yes, indeed.

I want my M4 machine gun NOW.

"Also funny how most everyone here is acting like all guns do is "defend" people. Why did you need the defense? Was it because, *gasp* someone with a GUN was going to KILL you? Huh. Seems like I'd be safer if that dude that was going to kill me with the gun just didn't have a gun."

I'd be safer if the dude that wanted to hurt me was a 5 foot tall woman with bad knees.

It's certainly wrong to insist that anyone who favors states rights or leaving issues to the states to work out in their various ways, MUST then hold that view for all issues or be a hypocrite about it.

The Bill of Rights are supposed to be those things that States are not allowed to mess with. It's *supposed* to be a limited list of fundamental freedoms.

A coherent conservative view is that some things belong at the state level and other things don't.

Even so, if gun rights belong at the federal level (which seems reasonable), dealing with them at the state level seems to be working fairly well. Although there are largish cities that have gun bans and dealing with different rules across state lines is a mess, overall it seems that more and more states are passing "must issue" laws and "castle" or "no retreat" laws and even laws allowing the voluntary defense of other people.

The DC case (Heller?) being taken to the SC makes sense in light of the unique situation of the District of Columbia not having a "state" level of government to take the case to.

Jesus H. Christ are you too stupid to know that I was talking about the constitution, which, btw, trumps any statute?

This what the supreme court has said on the subject at hand (meaning the constitution):

> We have held that all racial classifications imposed by government “must be analyzed by a reviewing court under strict scrutiny.” Ibid. This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests. “Absent searching judicial inquiry into the justification for such race-based measures,” we have no way to determine what “classifications are ‘benign’ or ‘remedial’ and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.” Richmond v. J. A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion). We apply strict scrutiny to all racial classifications to “ ‘smoke out’ illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.” Ibid.

That is Grutter v. Bollinger, an affirmative action case. They then went on to label the affirmative action program legal, but they never said it wasn't discrimination.

Jesus H. Christ, if you can't get your stuff together, then just step away from the computer and stop talking about law.

if you can't get your stuff together, then just step away from the computer and stop talking about law.

Physician, heal thyself.

Discrimination has an exact legal meaning under Title VII. But discrimination is likewise against the law in other parts of the Civil Rights Act of 1964.

But Grutter and Ricci have nothing in common. Unlike Title VII, which the Fire Department complied with in Ricci, the affirmative action admissions policy in Grutter was established by the University and not by statute. After applying strict scrutiny, the Court found this undergraduate admissions policy to be discrimination and thus illegal.

As far as I can tell, fls... the thing that happened with the firefighters was that no one applied any sort of "strict scrutiny" or any sort of "scrutiny" at all because someone threw out the test before it was applied... skipped the middle part or did a "run around" to the end zone... so that there was no game to make a ruling about.

You act as if some sort of ruling was made, when it seems as if the ruling was just that there was no game to make a ruling about.

The whole thing was just skipped over on a technicality.

At what point did someone actually examine the actions of the city and fire department and make a judgment about the test or the testing procedures? When did someone examine the test itself and show that it was racially biased to favor white people?

Now, you may want to do a happy dance in the end-zone over the fact that the game was called because of rain and no one has to answer in any way for what they did that was wrong, but regular people don't have much sympathy for those who take advantage of the law contrary to real events and common sense. This is why "legalistic" is a slur and not a compliment.

Winning by technicalities pisses off "the people" that the law is supposed to represent.

Nothing? They are both cases where race based discrimination under the 14th A occurred. And they are both cases where the proper answer is not to pretend it is not discrimination but to justify if you can.

Indeed, the cases are more alike than you are admitting. When the city says that it needs a minimum number of minorities to be promoted, what do you call that but a quota?

> and not by statute.

A difference without distinction. First, it is not altogether clear that the statute requires them to throw out the test. Second, if it did, but it was still impermissible discrimination under the 14th A, then guess what? The statute falls. Or more precisely, it is unconstitutional as applied.

And here is the funniest part. After you say I apparently don’t know anything about law, you say this about Grutter:

> After applying strict scrutiny, the Court found this undergraduate admissions policy to be discrimination and thus illegal.

The funny part is that you got it all wrong. Let me quote from the opinion itself:

> In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.

So you were wrong about three things:

1) the school won,2) it was the law school, not the undergrad part of the university, and3) the fact they found it to be discrimination didn’t make it illegal.

Perhaps you are caught up on the term “discrimination.” In ordinary parlance, “discrimination” means to treat a person unfairly according to a trait. But in the context of the 14th A, it merely means to take a different action according to a classification.

Now if you were a regular guy I would give you a pass, but for person professing to know about law, that is inexcusable that you don’t know this. I expect to teach that distinction to regular people, but not people trained in the law.

The most comprehensible explanation of what happened with the New Haven firefighters (that I have seen) is in this LA Times article. Excerpt:

The high court is thought to be divided on the case, which pits two provisions of the Civil Rights Act against each other.

On the one hand, the act says no employee may be discriminated against because of his or her race, sex, religion or national origin. On the other hand, the law also says an employer can be sued for using a hiring or promotional standard that has a "disparate impact on the basis of race," unless it can be defended as a "business necessity."

The white firefighters pointed to the first provision and said they were discriminated against when the city decided not to use the test scores for awarding promotions.

The city's lawyer pointed to the second provision and said New Haven could be sued by black firefighters who said the test had a "disparate impact" on them and their chances for promotion. Could the city defend itself, he asked, by proving that a paper-and-pencil test was the best and only reasonable way to decide who gets promoted to lieutenant or captain?

He doubted this defense would succeed, and he recommended dropping the test and starting over. The New Haven Civil Service Board split 2 to 2 on the issue, which meant the test results were set aside. Since then, the city has been fighting the discrimination suit from the white firefighters.

Well, there is no question that NH had put itself in a no-win situation. And this is literally a problem of their own making. For instance, they could have done this instead. They could have tested the test vigorously before introducing it. If they felt there was no test group that could substitute for the FDNH, they could have picked real NH firefighters, and said to them before they took it “right now we are just trying this out. This doesn’t count.” Then Mr. Ricci wouldn’t have “killed himself” studying for the thing to overcome his dyslexia.

Indeed, I find it surprising that there is no contract claim being argued here. For those of you out there dealing with non-discrimination cases, there are often promises made that can create its own cause of action, and you should always be aware of this. Ricci’s particular circumstances are particularly egregious. He is out a lot of money because the state promised him a promotion if he did well enough and then reneged on its promise, not to mention all of his hard work. But I won’t criticize counsel in this case for leaving it out. They might have done so for strategic purposes.

Promising all of these people that they would get a promotion if they scored high enough and then just throwing out everyone’s scores... its hard to call that narrowly tailored. They could have planned ahead of time for this outcome as I suggest above. Or, if they were genuinely surprised, they could have certified those results and then created a few extra promotion slots and give it to the highest scoring African Americans. Or at the very least they could have done a much better job developing a record establishing that the test is unfair and scrapped it for that reason—and offer to repay the people who spent money to study for it. I mean Ricci has suffered a real financial loss, not to mention a monumental waste of his time, all for nothing because of his race. At the very least they should take on his loss.

But I think if you read the sections I quoted in Grutter, the courts really want to say that they want to approve of each use of race. Of course that is a pain in the behind for the government, but I am at a loss to come up with an alternative. They shouldn’t be able to just say the words “affirmative action” or “disparate impact” and get a free pass, or else those terms will be invoked in situations where they don’t really apply.

And, bluntly, the safer course would have been this. First, throw out every question that has no application to new haven (there were a few). Then re-score the test based on that change. Then, unless they can show the remaining questions were unfair according to race, certify the results.

Because here is the reality of the situation. I have pointed out in the past where I thought that disparities existed. For instance, I have taken hundreds of IQ tests, and I remember one in particular that asked about the meaning of the book of genesis, but only asked generally what the Koran was. So clearly that is a test that favors Jews and Christians over muslims, because while the first group is rewarded for specific knowledge of their holy book, the second is not, and I said so at the time. But I don’t think that kind of thing is happening here. I would be really surprised if they are asking questions on the test that is rewarding one set of knowledge that white people are more likely to have, and not exploring areas of knowledge that African Americans are more likely to have, which pertains to firefighting.

There are actually four possibilities to explain it that I think are more likely. The first is that this is just a statistical burp. I believe the average white person is just as suited as the average black person to be a firefighter, but that doesn’t mean that there are never any statistical deviations from that. In one community, I would assume that more black people than whites would make great firefighters; and in another, more white people than black people would be.

The second is that something in NH society keeps the best potential black firefighters from becoming firefighters in the first place, that doesn’t restrain white firefighters.

The third is that maybe the African American firefighters could have done better but effects of discrimination over their life have held them back. So for instance, maybe their minds simply haven’t been nurtured over their lifetimes as much as the white firefighters.

And the fourth is that maybe in the past NH has practiced discrimination against African Americans, so that in the past firefighters were more likely to be white. So then those white firefighters very often raised their children to follow in their footsteps and therefore have given their children a lot more training in the area of firefighting. So maybe Ricci is a great firefighter in part because his daddy, and his granddaddy, and his great-granddaddy were all firefighters, and he benefits from all of that familial knowledge.

I have a feeling that the last one is the most likely possibility.

Now, in all of those possibilities it is still the case that as of this day, the best scorers on the test are likely the best firefighters, and if there is any discrimination to blame, it is not the test itself, but forces outside of the test itself. And however much we might lament those outside forces (and I do) and the wasted potential, the fact is if your house is burning down, do you want the guy who would have been a great firefighter but for discrimination that keeps him from acquiring the knowledge to be a great firefighter, or the guy who IS a great firefighter?

The question answers itself.

It also suggests that rather than taking the easy way out by quotas and the like that NH can and probably should engage in an aggressive program of developing African American firefighters to their fullest potential. So the affirmative action should be there, in the form of affirmatively finding black potential and developing it. Rather than ignoring what are more likely than not real differences in knowledge and ability, NH should instead work to erase those actual differences.

Which is indeed what is so pernicious about the defacto quota here—it allows NH to ignore the underlying reasons for the disparity, rather than address and correct them. It doesn’t do the people of NH or the black firefighters themselves any favors if they are promoted when they don’t deserve it.

I should add that when i said Ricci's father and grandfather were firefighters, that i was speaking wholly hypothetically. i don't believe anything like that has been said on the record in the case, and in any case i have no idea what his family did for a living. But i realize I didn't make that clear so i am now.

And if a family history makes a person a better fire-fighter or police officer or doctor or teacher or Army sergeant, then the person is a *better* person for the job.

I'm not convinced that is at all true (having enlisted without family tradition behind me, and military is one of those "family tradition" sorts of things) but *if* it is true, then families of any ethnicity will have the same advantages for future generations.